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Nebraska Senator Ben Sasse With His Friday Assessment of Thursday’s Judge Kavanaugh Hearings

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Senator Ben Sasse joined me again for the fourth consecutive day to review the Kavanaugh proceedings this Friday AM:




HH: I am not Spartacus, but I have Ben Sasse, Senator from Nebraska, with me. He may be Spartacus. Are you Spartacus, Senator Sasse?

BS: I am not Spartacus, but I wish I had the voice to play the role.

HH: What did you think of your colleague, Senator Booker’s, display. The Senate Majority Leader in an interview with me yesterday said he went entirely too far.

BS: He went entirely too far. But we, it’s just a picture of so much of the dysfunction of this place, right? They, there are people who are just using these hearings as a backdrop for other stuff like trying to launch 2020 presidential campaigns. So the whole scam there was that somebody was committing civil disobedience and going to try to get arrested and hauled out of there by releasing documents that were already public and that they knew to be public. And oh, by the way, what they actually showed was that Kavanaugh, who didn’t want to reveal his personal views on stuff, because he’s had mostly ministerial functions, but it turns out he’s an opponent of racial profiling. He wasn’t in favor of it. So the whole fake document release was actually something that would have helped Kavanaugh. But it’s all for the theater, so it was shameful.

HH: It really was. Fake news. But there was another shameful moment, cut number 21:

BK: I’m a connoisseur of umpiring.

BS: So I want to jump in here, because I agree with you that the analogy is strong and tight, but I think it’s imperfect, right?

BK: Yes.

BS: Because in a football, my dad was a football coach. In a football game, everything that’s going to happen inside the four corners of that 120 yards with end zones is predictable in that Woody Hayes comes off the sideline in 1971 and punches a player in the face. That was new, and yet it was still non-participation. There’s a rule. You can only have 11 players.

HH: Just stop. Throw a flag, somebody. Okay, penalty for Nebraska shade throwing, running on to the Judiciary Committee field for the purpose of throwing shade on Woody Hayes. What were you thinking?

BS: Well, first of all, let me be clear. I think a lot of Woody Hayes. The guy won 200 games, right? I mean, he’s no Tom Osborne. He’s won…

HH: 238 games and five national championships.

BS: Yeah, and I think four and a third. There’s some dispute there. But it’s true. He had national championships that spanned 15 years, right, or mid-50s, ’53, ’54 and then to the late 60s?

HH: 1970 was the last one, yeah.

BS: But Twitter told me last night that I got the year wrong. My football, I was born in ’72 and my football consciousness starts in ’79. So I guess it was ’78.

HH: Yeah, and it was the ’78 Gator Bowl, yeah.

BS: Okay, well, I had early 70s.

HH: Yeah, but…

BS: But frankly, I love your passion. Hugh, I love your passion, too, but I love Woody Hayes’ passion. The picked off ball in the Gator Bowl causes him as an old man to come and try to rejoin the game. And even if he was in the wrong sport, but I respect it.

HH: You were talking about…

BS: But it’s sort of the thing a rule…

HH: But here’s the bad reason that you should, it was a bad, bad analogy.

BS: Okay.

HH: You were talking about precedent, and you said now there was a precedent for these rules, because Woody Hayes ran onto the field. You’re only allowed to have 11 men on the field. But actually, there was no precedent for a five-time national football coach what to do with him. Ohio State fired him.

BS: Oh, right.

HH: And so what Judge Kavanaugh ought to have said is what you’re talking about is a new circumstance in an old setting that will require a new ruling. Your exchange with the judge on precedent may have been one of the highlights. Did you get what you wanted out of that exchange?

BS: I think so. I mean, the student in me, as a non-lawyer, is still learning on a lot of these topics, right? But I think one of the most encouraging things for me is that he said flat-out sometimes the Supreme Court gets things wrong. What you don’t want people to be saying is precedent is now inviolable because any time the Supreme Court does something, it is the law of the land and it can never be reconsidered. For 58 years in this country, from Plessy in 1896 through to Brown V. Board in 1954, there was a horrible, racist ruling on the books, and we shouldn’t have said it was settled law of the land. And so I got what I wanted at the top line, which is we need to admit that the Court gets things wrong, and things need to be reevaluated. And he said that, and I think it was helpful for him to sit in that historical moment between 1890s and 1954 and say it was wrong from day one.

HH: And that there was a dissent registered…

BS: Yeah.

HH: And it has, he also cited that reliance matters, but if you don’t rely on a decision, it’s less stable, and so do the people have a say in it. The controversy doesn’t go away. It’s one of the factors in stare decisis. Now I’ve got to switch back and forth with you. The president of the United States just tweeted. He said the Woodward book is a scam. I don’t talk the way I am quoted. If I did, I would not have been elected president. These quotes were made up. The author uses every trick in the book to demean and belittle. I wish the people could see the real facts and our country is doing great. Do books like Bob Woodward’s, do op-eds like the anonymous one in the New York Times help the country or hurt the country?

BS: Well, we could start with original sin, right? The things are bad in life in general. Things are also great. We’re blessed. There’s common grace, etc. But because the world is broken, I think the real question is does transparency and sunlight on things that are broken help or hurt, and I think the answer is it depends. It depends on who’s doing it. So I don’t know Bob Woodward, but I mean, he’s got an unbelievable reputation because of the way he does his sourcing. And so I tend to think that Woodward’s books are, have stood the test of time and will stand the test of time for good reasons. So I think that that kind of journalism is really, really important in the long term. That’s quite different, in my view, from the anonymous op-ed, which as you and I talked about a little bit yesterday, the things that are detailed in that op-ed are similar to what a number of us in the Senate hear from senior people in the White House on a regular basis. But that’s different than, I question the morality of the act of publishing that anonymous op-ed, because if the person’s point is to try to tamp down paranoia and lead to more rational decision making, I think the inevitable effect of this is to cause more paranoia. But I mean, at some point, you’ve got to look at why is there so much soap opera drama every day and every week coming out of this White House. And it’s not because of one op-ed, and it’s not because of the Woodward book. It’s because there is this kind of drama actually in the White House.

HH: I am reading, I’m engrossed, actually, by Senator Kerry’s memoir, or Secretary of State Kerry’s memoir. And his time in the Senate reveals to me that the body is quite different inside than it appears to the world outside. Do you think we could benefit from an anonymous op-ed by one of your colleagues about what really goes on in the Senate that would reveal just what this anonymous op-ed in the New York Times has revealed about the White House?

BS: Well, I haven’t read any of Kerry’s book, but you’re surely right that the Senate is very different inside than on cameras. And I think that the body politic is going to have to grapple with this question that cameras distort, and that immediacy distorts many things. You saw, you’ve seen it all week at this hearing, right?

HH: Yes. Yes.

BS: The most fundamental distinction as a newbie here, I’m one of eight people, I think, in the Senate who’s never been a politician before, the thing that’s most surprising to me joining this place, maybe I have to say two things, one is there’s so little long-term thinking in this institution. The founders had this great insight of the distinction between legislative and executive functions, which can be boiled down to this. Committees make better decisions than individuals in life. That’s why corporate boards work and matter. Individuals execute far better than committees, right? So you want an executive/legislative distinction. It has to do with the way the human brain deliberates versus deciding to act. Aristotle talked about this a ton. I thought before I got here that the Congress would understand itself to be like a really good board. It doesn’t. It’s a whole bunch of freelance grandstanders who don’t take a long-term vision very often. And people want short-term attention. And so one of the things that doesn’t work in our government is that our legislature doesn’t deliberate. But second thing, there’s a big difference between the way people act around here and the way they deliberate when cameras are off versus on. On national security matters, when we’re in the SCIF in the basement, people, they just don’t peacock and grandstand the same way, and they treat each other with more respect and they listen to arguments. But they don’t do that when they’re on TV all the time. And so some of what does, I’m in favor of keeping the hearings for Supreme Court confirmations, to be clear, but I think the idea of taking cameras and putting them into the Supreme Court would be disastrous, because you’d have attorneys constantly grandstanding for cameras. They might be trying to, not trying to lose their case, but not really minding, because their main audience is their book deal or their next, the next TV gig.

HH: Or their next client. Or their next client.

BS: Yeah. So there’s…yeah.

HH: Let me ask you about Judge Kavanaugh, because I went up to the Hill yesterday and sat down with the Majority Leader. He told me he’s very certain that the Judge will become the Justice by the end of the month. He also told me, and I’d like your comment on this having exchange with the Judge over four days, one, that the Judge owes no loyalty to the President, no justice ever does, and two, he did not know if a president could be indicted or subpoenaed. That would be up to the courts. Your comments on those conclusions, Senator Sasse?

BS: I think conclusion one was that Brett Kavanaugh is going to be confirmed and confirmed soon. I would certainly believe he’s going to be confirmed, and I would defer to the Majority Leader on when the timing happens. One of the powers of a majority leader is to control the calendar. So Mitch would know when that’s going to happen. But the first week in October is when the Court reconvenes, and I think a lot of us believe it’s ideal to get this done and get him on the Court so there is a full complement of nine when they start hearing cases. And I’m sure that’s going to happen. I think that, remind me what the second part was?

HH: The Majority Leader said he did not know if a president could be indicted or subpoenaed. Federalist 69 says no, but it has not been the subject of a, on the foursquare’s ruling that we have Nixon V. U.S. Do you believe a president can be subpoenaed? Do you believe a president can be indicted in a criminal proceeding?

BS: I think on the latter point, DOJ, the Justice Department under both administrations has long held that presidents are not immune from criminal proceedings against them, but it is delayed. So I think if I remember Federalist 69 right, and I think the way that the Justice…

HH: You have to remove him first, yeah.

BS: …that you have to, there has to be impeachment proceedings before criminal proceedings. But then, I think that Kavanaugh was clear that his understanding and view is that it’s time limited, right?

HH: Correct.

BS: The president’s job is not eternal, and so you are not immune from criminal action against you.

HH: Correct.

BS: It’s just delayed until after your office. I also think that, sorry, Hugh.

HH: Oh, subpoena. Should…

BS: Early to bed, I’m an early to bed, early to rise guy, and I’ve been up way too late the last few nights.

HH: Should a president be subject to a subpoena in an ongoing criminal process concerning him, in your view, Senator Sasse?

BS: Yeah, I don’t know the answer to that, and I would want to be consulting people. So I just don’t know.

HH: All right. So at the end of this, I want to finish on a high note. I’ve been very impressed with Senator Klobuchar and Coons on the other side and their colloquies with Judge Kavanaugh.

BS: Yes.

HH: Klobuchar, Kavanaugh, Coons and Sasse, a good law firm. Who did you admire on the other side?

BS: Those two would have been my top two, too, as well. I think Amy has done a really nice job. So I like Chris Coons a lot as well, and I think he’s a thoughtful guy, and I think he has long-term concerns for the country that are thoughtful. I think he stuck on executive power for a long, long time. I also share some of the concerns, but he seems to think a unitary theory of the executive is a bogeyman, and I think Scalia’s dissents in the past have been really thought on Morrison and other places, so I was just less interested in that line of questioning. But I think Klobuchar was impressive, and for somebody who, you know, is constantly rumored to be running for president, she just didn’t do any of the short-term grandstanding that so many of the other people running for president were doing. So I think people in Minnesota can be proud of her for her conduct in these hearings.

HH: Well, Senator Sasse, I appreciate you’re being the John Madden in the Hugh Hewitt booth on the Kavanaugh hearings this week. It’s been fascinating and fun, and I hope you’ll keep coming back. Thank you so much and good luck today. You’ve got to listen to all the panels today to say predictable things about a foregone conclusion. But that’s what a Senator’s job is, isn’t it?

BS: It should be more than just that, but that’s part of it, and I know, I want to thank you not just for the invite this week, Hugh, but also for saying you’re rooting for the Huskers against the Buffs tomorrow.

HH: Well, I can’t do that. My son’s a Buff. So we can’t do that. Sorry about the loss that’s coming your way, but leave Woody alone. Thank you, Senator Sasse.

End of interview.


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